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State v Ravutubananitu [2014] FJMC 21; Criminal Case 103.2010 (11 February 2014)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 103/10

BETWEEN:

STATE

AND:

WAISAKE RATOTO RAVUTUBANANITU

Prosecution: Sgt Nadolo / PC Nitesh / PC Dinesh
Accused: Mr Nawaikula

Ruling on No Case To Answer

Background

1. The accused person was charged for the offence of Larceny contrary to section 259 & 262 of the Penal Code, Cap 17.
   
2. The particulars of the offence were as follows:
   

WAISAKE RATOTO RAVUTUBANANITU on 24th day of December 2009 at Tavua town, Tavua in the Western Division stole cash of fifteen thousand Fijian dollars ($15,000.00) the property of Mataqali Navusabalavu.

3. The accused pleaded not guilty and matter proceeded for hearing. Prosecution called six witnesses to prove their case. The witnesses called as follows:
   • PW1 – Miliana Kinita
   • PW2 – Esava Drelo
   • PW3 – Laisenia Caucau
   • PW4 – Ovini Uqeuqe Bokini (statement tendered as evidence)
   • PW5 – Timoci Ratu
   • PW6 – Akuila Ratu
     

Evidence

4. I now briefly consider the salient evidence adduced by prosecution during the trial.
   
5. PW1 - Miliana Kinita

She resides at Yasiyasi Tavua for more than 20yrs now. She's from Tavualevu Village, mataqali Navusabalavu. Head of mataqali is Manasa Naiceru. On 24/12/09 2pm she recalls was at home when head of mataqali called for them to have meeting at village hall for distribution of money to be brought by NLTB officials. Mataqali members were present. Money is for CBUL and land they own. All mataqali members were to share the money. Akuila and one Mataitini from NLTB came with one police officer. They were to receive $27,768.65 from NLTB officials and distributed between the three tokatoka's. It was agreed by mataqali that Peni Ravutubananitu receive money on behalf of mataqali. Peni is father of Waisake Ratoto. I saw that day that Peni received the money in money bag and Waisake Ratoto took the money bag from Peni and placed before him. When NLTB left, Waisake also left with two others Viliame & Bari, boarded private vehicle and left. They didn't tell us where they went. The turaga ni mataqali called him and they went together to his house. She was at home when she received her share of $27.00. I was told by turaga ni mataqali that Waisake took $15,000.00. She reported the matter to police. Left over from $15,000 was shared between mataqali members. Waisake is accused.

In cross examination she stated that money belongs to mataqali and there are more than 100 members. She's the only complainant as other members cannot speak out. Majority of the members didn't complain. She's just a member of mataqali. She agrees that at one time mataqali money was frozen. She doesn't know when money was requested. She's not aware of any mataqali debt and doesn't know any dispute between trustees. She confirmed that money was given to Peni and then Waisake took it from Peni.

In re-examination stated that only trustees for mataqali receive money and distribute it.

6. PW2 – Esava Drelo

Confirmed everything said by PW1. He's also member of mataqali. He was also present at the village hall on 24/12/09 for distribution of money. Doesn't know how much they were to get but everyone was to receive equal share. Money was handed over by NLTB official to Peni the father of Waisake Ratoto. He's the accused. Accused took money from Peni after NLTB handed the money to Peni. Accused took money and left in private vehicle. He said he's going to town and will return for money to be shared. Accused told them that money will be distributed at Maikeli's house. Accused returned to Maikeli's place 15 minutes later and told them that $15,000.00 has been taken. No reason was given as to why money was taken. When mataqali members heard this they got angry. The rest of the money was distributed from the $15,000 taken.

In cross – examination he stated that he doesn't know of any money to be used to pay mataqali debt. On that day no one objected to accused taking money. No one complained when accused said he had taken the money. At Maikeli's house no one objected to accused taking money.

In re-examination he stated that the mataqali members queried about the $15,000deducted and not happy with it. Other elders were there and they didn't object. They said money had been deducted and they can't do much and they'll just have to share the left overs. Elders were happy with what happened.

7. PW3 – Laisenia Caucau

He's also a member of the mataqali. On the day in question he was also present when NLTB staff brought money for distribution to mataqali members. He saw Peni received the money from NLTB official and doesn't know what happen next. Waisake Ratoto was also present and he's the accused. He recalls that at the police station he only signed a document but that he didn't give any statement to police.

8. PW4 – Ovini Uqeue Bokini

He's a farmer and member of Mataqali Navusabalavu. On 24/12/09 they were gathered at village hall. He also gave statement to police and signed the same document (police statement tendered ex.1). That day he saw Waisake took money from his father. Mataqali didn't consent for Waisake to take money. Waisake told them that $15000 had been taken by him. No one consented for the money to be taken by him. He didn't inform us that he'll take the money. Money was given by Government (CBUL) for mataqali. Waisake is the accused.

In cross examination he stated that Waisake was one of the first trustees of mataqali. There was a dispute between trustees and their group came in. He doesn't recall how mataqali goes about in paying its debts but provision is in document. Members were stunned when Waisake took money from his father. There were objections in accused taking money but he just left with money.

In re-examination he stated that accused didn't give any reason as to why he took money.

9. PW5 – Timoci Ratu

He works for Ra Provincial Council for 3yrs now as Assistant Roko. Prior to that he was with Ba Provincial Council for 8yrs and was also Assistant Roko then. On 24/12/09 he accompanied NLTB official (Akuila Ratu & Mataitini) to Tavua to distribute money given from Government (CBUL) for mataqali Navusabalavu members. One Peni received the money on behalf of the mataqali members. When Peni received money bag he saw Waisake enter door from top and took money from Peni. Waisake then boarded a private car and left for town. He then went and spoke to mataqali members to calm the situation at Maikeli's house. Waisake came back after 15 minutes with the money and placed it inside the house where mataqali members were. Waisake also informed the mataqali members that he took $15000 and the rest to be shared. He didn't say as to why he took the money. Then mataqali members counted the money and remaining amount was more than $12000. Waisake is related to him and is the accused.

In cross examination he stated that Peni handed money to Waisake and didn't hear any conversation between Peni and Waisake. No one stopped accused when money was given to him and accused explained why he took money. No one objected to accused taking money because it happened in short period.

In re-examination he stated that Waisake explained to members why he took money. He doesn't think members agreed to what Waisake did.

10. PW6 – Akuila Ratu

He's an estate officer with ITLTB for 24yrs. On 24/12/09 2pm came with Etuate Mataitini to Tavua to make CBUL payments to mataqali Navusabalavu. CBUL is "Committee for Better Utilization of Land". Mataqali had trustees to see how money was used. Peni was not a trustee at that time. There was a letter received that Peni was to receive money on behalf of mataqali.

In Cross-examination he stated that when NLTB hands over money that was it and trustees for mataqali will decide how money is distributed.
Issue

11. Whether there is no case to answer for accused person?
    

Law/Analysis

12. Section 178 of the Criminal Procedure Decree states that "if at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused."
    
13. In the case of State v Mahend Prasad HAA 019 of 2008, at paragraph 17, the Court had this to say when dealing with the issue of case to answer "...The test to be applied in the Magistrates Court, was explained in Abdul Ghani Sahib v The State [2005] FJHC 95; HAA 0022 of 2005; 28 April 2005, as:
    

'In the Magistrates Court, both tests apply. So the Magistrate must ask himself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and second whether the prosecution evidence, taken at it's highest, a reasonable tribunal could convict. In considering the prosecution at its highest, a reasonable tribunal could convict. In considering the prosecution case, taken at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission on no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case.'

14. The elements for the offence of larceny are:
    
    1. Accused (Waisake Ratoto Ravutubananitu);
    2. Without consent of owner (Mataqali Navusabalavu);
    3. Fraudulently and;
    4. Without claim of right made in good faith;
    5. Takes and carries away anything capable of being stolen ($15,000.00);
    6. With intent at the time of taking to permanently deprive the owner.
       
15. When considering the facts there is relevant and admissible evidence to show that accused had taken $15,000 belonging to the mataqali.
    

Further there is relevant and admissible evidence from PW1, PW2 and PW4 that mataqali members were not happy with accused taking the money and that the mataqali had not consented for accused to take the money. The said evidence is sufficient to point to the first and second elements of the offence.

16. Moreover there is relevant and admissible evidence to show that mataqali members had agreed only for Peni (accused father) to receive the money on their behalf. No one agreed that accused take the money from Peni as he did. There is ample evidence showing that accused fraudulently and without claim of right took the money from Peni. Hence there is sufficient evidence that points on the third and fourth elements of the offence.
    
17. In addition there is relevant and admissible evidence to show that accused took away the $15000 and it was never returned nor shared it with other mataqali members. There is ample evidence pointing to the fifth and sixth elements of the offence.
    
18. I bear in mind that at this stage, the duty of the court is to analyze the evidence using the objective as opposed to the subjective test. It's not for the court to decide on witness credibility and weight to be placed on material evidence at this stage.
    
19. When considering the evidence of prosecution at its highest, the Court is of the opinion that on the evidence so far adduced by prosecution, a reasonable tribunal could convict on the evidence.
    

Conclusion

20. On the basis of the evidence so far adduced by prosecution, I'm satisfied that there is ample evidence that points to each element of the offence charged.
    
21. Therefore the court finds that there's a case to answer against the accused person.
    
22. Accused should be put to his defence.
    

Samuela Qica
Resident Magistrate

11th February 2014